Stacey Gardner v. Lennon Gardner (2011)

MEMORANDUM OF DECISION

This action seeks the dissolution of the parties' nineteen-year marriage.   The action was commenced by complaint dated December 12, 2009 and returnable to the court on February 23, 1010.   Pursuant to General Statutes § 46b–40(c)(3), the complaint claimed adultery as the reason for the divorce being sought.¹

The parties appeared at trial on March 15, 2011.   The plaintiff and defendant were self represented.   The court heard testimony from four witnesses, including each of the parties, and received into evidence one exhibit.   The court further took judicial notice of protective orders naming the defendant as the respondent as issued in the following docket numbers:  H14H–CR07–0616757–S and U04W–CR07–0357716–S.   The court considered all of the evidence presented, the provisions of General Statutes §§ 46b–56, 46b–56a, 46b–56c, 46b–81, 46b–82, 46b–84, and 46b–215a, and the provisions of the Child Support and Arrearage Guidelines.

There having been a contested trial at which financial matters were in dispute, the financial affidavits of the parties were unsealed in accordance with Practice Book § 25–59A(h).

FINDINGS OF FACT

The parties were married on February 29, 1992.   Five children have been born to the plaintiff and are the biological children of the defendant.   Prior to the marriage Lennon D. was born on June 17, 1991.   The following four children were born since the date of the marriage:  Sage J. born December 23, 1992, Brandon M. born May 15, 1994 and Jordan M. and Jada M. each of whom was born on May 21, 1998.   Sage is eighteen years old;  the three other children are minors.   All of the children reside with the plaintiff in her residence.

Other than the receipt of food stamps, neither of the parties or the children has received assistance from the state of Connecticut or any municipality thereof.   The plaintiff and the defendant lived in the State of Connecticut for more than one year prior to filing the complaint.   The parties have been living separate and apart since October 2009.

The plaintiff is forty-one years old and in good health.   She has completed three years of post-secondary education.   The plaintiff has been employed at Northeast Utilities for approximately the past ten years.   Her job is stable and she is able to support herself.   Her current weekly gross income is $1,065 a week, or approximately $55,380 per annum.

The defendant is thirty-nine years old.   He is in good health.   He has been working as a driver for various trucking companies for the last several years.   He has, however, been with his current employer for less than one year and he was with his previous trucking company for only about eight months.   He testified that he can maintain steady employment and he too can support himself.   According to his sparsely completed financial affidavit, his gross weekly wage is $823 resulting in an annual gross income of $42,796.

Although the parties testified that they can support themselves, their weekly expenses are significantly greater than their weekly earnings.   Neither party is seeking alimony from the other.

The parties do not own any joint assets.   The plaintiff, on or about September 2006, purchased a home at 49 Alexander Road, Bloomfield, Connecticut.   The value of the home is, based on the undisputed testimony of the plaintiff, approximately $295,000 and is subject to a mortgage loan having an approximate balance of $305,000.   The mortgage is being foreclosed.   The plaintiff is attempting to negotiate with the lender to keep the house through the foreclosure mediation process.   The court finds there is no equity in the home.   The plaintiff wants to keep the house for her and the children.

The defendant husband does not want the house.   In September 2006, the defendant was living in a house owned by plaintiff's uncle.   He was happy to stay there.   He testified that the plaintiff offered to buy him the car that he wanted to induce him to move to the Bloomfield house.   So, she bought a 2007 Chrysler 300 and he relented.

All he wants is that car.   That could not have been made any clearer.

The Chrysler 300 is in the name of the plaintiff.   The car was registered in her name to save money because the defendant had a prior “DUI refusal.”   He claims that he made the car and insurance premium payments from the time the car was acquired until he moved out of the home in October 2009.   He and his paramour testified that he made payments thereafter, although not on a regular basis.   The defendant listed the Chrysler on his financial affidavit although he does not dispute that title is in the name of the plaintiff.

The plaintiff's financial affidavit did not list a value for the Chrysler, but did provide the outstanding of the loan thereon as $9,157.   The defendant listed the Chrysler at a value of $9,000 and subject to a loan in the amount of $7,000.   The court accepts the loan balance to be as stated by the plaintiff on her financial affidavit and therefore finds there to be no equity in the car.

In addition to the Chrysler, the plaintiff also owns a 2008 Jeep Liberty.   There was no testimony as to the value of the Jeep, although there was testimony that it is subject to a loan in the amount of $19,670.   The plaintiff is the sole obligor on the Jeep loan.   The plaintiff also owns a 1985 Ford Expedition which is not operable and has negligible value.   The plaintiff and the oldest child drive both the Jeep and the Chrysler.   She testified that she has been making car payments on the Jeep and the Chrysler, as well as paying for the insurance and taxes on all of the cars.

The plaintiff has a life insurance policy naming the defendant as the beneficiary.   She does not know the benefit amount or if there is any value to the policy.

The only other assets she lists on her financial affidavit are two accounts at a credit union having an aggregate value of $112.

The plaintiff has health insurance through her employer and the defendant and the children are covered thereunder.

The defendant lists no assets on his financial statement other than the Chrysler and two bank accounts at TD Bank having a total balance of approximately $1,000.

He testified that he can obtain health insurance through his employer.

In addition to the loans on the house and the cars, the plaintiff lists indebtedness to the credit union on her financial affidavit.   She alone is liable for such debt.

The couple, however, has substantial unpaid tax liability to the Internal Revenue Service (IRS).   The defendant agreed and the court ordered, pendente lite, that the defendant is solely responsible to pay the $7,293.04 payable to the IRS in connection with the 2008 federal income taxes and he is to indemnify and hold the plaintiff harmless in connection therewith.

The defendant claims the plaintiff wrongfully filed a joint tax return for the parties for the calendar year ending 2009.   She filed before she had all of his W–2 statements.   The IRS sent a notice to the parties, at the defendant's address, proposing an additional tax assessment of $31,838 together with interest and penalties thereon for a total proposed balance amount of $39,538.   The defendant wants the plaintiff to be solely responsible for the additional taxes, despite the income that was not reported having been earned by the defendant.

The plaintiff is requesting the court to order that the parties file jointly the tax return for the calendar year ending 2010 and share the tax liability equally.

The court issued further pendente lite orders.   On March 3, 2010, the court, Taylor J., approved and ordered an agreement of the parties that, in addition to establishing the amount of child support at $141 a week and additional support payable by the defendant towards household expenses in the amount of $200 a week, the plaintiff would retain the Jeep and the defendant would have the Chrysler.   The defendant was ordered to make the car payments on the Chrysler and hold the plaintiff harmless.   The plaintiff was to maintain the insurance on both cars.   The plaintiff did not turn the Chrysler over to the defendant.   On February 15, 2011, the parties, after the plaintiff moved to modify the pendente lite orders, entered another agreement, which was approved and ordered by the court.   The agreement provided for an increase in the monthly payments of child support to comport with the Child Support Guidelines to $202 a week and allocated responsibility between the parties for the unreimbursed medical expenses of the minor children.   The court found the defendant to be in arrears for the payment of child support and household expense support in the amount of $2,794.00 and $10,000 respectively, for a total arrearage of $12,794.   The arrearage was to be repaid at $40 a week until satisfied.   Immediate wage withholding was ordered.

The defendant did not institute the wage withholding.   He claimed he was informed by the clerks' office to hold off on doing so since the trial was coming up soon.   He has not made any child support or support payments towards household expenses since February 15, 2010.   There have been four weeks since February 15, 2011 to the date of the trial, March 15, 2011 resulting in a failure by the defendant to pay $808 in child support and $800 in additional support.   Accordingly, as of March 15, 2011, the child support arrearage is found to be $3,602 and the arrearage for household support is $10,800.

The defendant does not contest the plaintiff's claim that he committed adultery.   He had two children by another woman during the marriage to the plaintiff.   The mother of his other children, who remains his paramour at this time, was a witness for the defendant.

Her involvement in the marriage of the parties was not limited to having a relationship with the defendant.   The defendant unreservedly testified that his girlfriend, in the summer of 2009, assaulted and “beat up” his wife in front of the children.   It was shortly thereafter that he vacated the family home.

The domestic violence in the family was not confined to incidents involving the defendant's paramour.   The plaintiff testified that the defendant has beaten her up by, among other things, pulling her hair off her head.   The defendant's denial was tepid.   He said he was not abusive, but if he was scratched first, he would defend himself.   On January 10, 2007, a criminal protective order was issued in favor of the minor child Jordan naming the defendant as the subject party.   The protective order was issued after the defendant was arrested for assault 3rd charges;  he later was charged with failure to appear in the same docket number.   The protective order in favor of Jordan was terminated on April 6, 2009.   Also in 2007, the defendant was arrested on four counts of risk of injury to a minor and one count each of assault 3rd, disorderly conduct and breach of peace 2nd.   On December 6, 2007, a criminal protective order in favor of the plaintiff was issued in connection with those charges.   The protective order in favor of the plaintiff terminated on February 27, 2009.   The plaintiff testified that the defendant was on probation as of the date of the dissolution proceeding.

The children do not have any special needs.   Although the defendant testified, not credibly, that he thought the plaintiff allowed the children to stay overnight with “unknown” people, he agreed with the plaintiff that joint legal custody with primary residence with the plaintiff mother is in the best interest of the minor children.   The plaintiff is asking that the defendant's parenting time be on an every other weekend basis with parenting time during the week to be granted by mutual agreement.   The defendant is requesting parenting time on every weekend, but agrees that parenting time during the week should be by mutual agreement.   Both parties agreed that since the family does not celebrate holidays, there is no reason to allocate parenting time between them for any particular holidays.

The court finds the plaintiff has borne the responsibility for running the household and providing the care for the children.   The defendant chose to start another family while he was married to the plaintiff.

The court finds the testimony of the plaintiff to have been credible and does not find the testimony of the defendant to have been so.

ADDITIONAL FINDINGS AND ORDERS

The court makes the additional findings and enters the following orders:

A. Jurisdiction and Dissolution

The court has jurisdiction in this matter which has been pending for more than ninety days.

The defendant is at fault for the breakdown of the marriage due to his admitted adultery.   Adultery as a ground for dissolution under General Statutes § 46b–40 requires proof that the other spouse has engaged in extramarital sexual relations.  Brodsky v. Brodsky, 153 Conn. 299, 300, 216 A.2d 180 (1966).   As the defendant admittedly fathered children with another woman while he was married to the plaintiff, the evidence is clear and convincing that the ground of adultery has been proven.

The court finds further the allegations of the complaint have been proven and true.

The State of Connecticut has not, other than the provision of food stamps, contributed to the support of the parties and their children.

A decree of dissolution may enter.

The marriage of the parties is hereby dissolved, and they are each declared to be single and unmarried.

B. Custody and Access

The court has considered the testimony at trial and the factors set forth in General Statutes § 46b–56(c) and hereby orders joint legal custody of the minor children, with primary residence with the plaintiff mother.

The defendant father shall have parenting time every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. Father shall pick up the children from and drop off the children at the plaintiff's residence.   He shall not enter the home, but shall meet and drop off the children in the driveway.   The defendant shall have additional parenting time at such times as shall be mutually agreeable to the parties.

The parties are ordered not to disparage each other in the presence (or within the hearing) of the children and to use their best efforts to ensure their respective paramours and extended family members do not disparage the other party in the presence (or within the hearing) of the children.

The court finds the foregoing orders to be in the best interest of the children.

C. Child Support

Based upon the combined net weekly income of the parties the presumptive minimum basic child support payable by the defendant is $202 a week.   After hearing the testimony of the parties and reviewing the financial affidavits, the earnings of the respective parties, and the Child Support and Arrearage Guidelines Regulations, the court orders the defendant to pay child support to the plaintiff in the amount of $202 per week.   The child support payments and the payments to satisfy the pendente lite arrearages, as set forth below, are to be made by immediate wage withholding.

D. Pendente lite arrearages payable by the defendant

As of March 15, 2011, the court finds the defendant to be in arrears in the payment of child support in the amount of $2,794 and in arrears in the payment of support payable pendente lite in the amount of $10,800 for a total arrearage of $13,594.   In the event the defendant has failed to pay all or any portion of the weekly child support in the amount of $202 and/or the weekly support payment in the amount of $200 since March 15, 2011 to the date hereof, the arrearage amount shall be upwardly adjusted to include such additional amounts.   The Court orders the accumulated arrearage amounts incorporated into this judgment of dissolution.   See Evans v. Taylor, 67 Conn.App. 108, 116 (2001).   Accordingly, the defendant is ordered to pay the arrearages to the plaintiff by payment of $40 a week (together with the weekly child support payments of $202 for a total of $242 a week) until the arrearages have been fully satisfied.

Further, to the extent the defendant has not fully paid the outstanding medical bills for the minor children as ordered by the court on February 15, 2011 in the aggregate amount of $1,481.80, the defendant is ordered to pay the same on or before May 31, 2011.   The defendant shall indemnify and hold the plaintiff harmless from liability for such payments.

E. Medical insurance

The plaintiff shall continue to maintain medical insurance for the children through her employer.   In the event medical insurance for the minor children is not available to the plaintiff at a reasonable cost through her employer, the defendant is to provide such insurance if available at a reasonable cost through his employer.   If medical insurance is not available to either party at a reasonable cost through their respective employer, the plaintiff shall apply for HUSKY or equivalent insurance for the children and the plaintiff and defendant shall equally share the cost thereof.   Reasonable cost, for purposes of this provision, shall be determined in accordance with the applicable regulations.

The defendant shall be responsible for 31% of the amount of any unreimbursed medical, dental, optical, pharmaceutical, psychological, psychiatric, and orthodontic expenses, including any deductibles, for the minor children;  however, if the minor children shall not have graduated from high school at the time of their respective eighteenth birthday, then the provisions of General Statutes § 46b–84(b) shall apply.   In addition, the provisions of General Statutes § 46b–84(e) shall apply regarding the processing of medical insurance claims for the minor children.

The defendant shall obtain his own medical insurance.   In the event he chooses to remain on the plaintiff's employer's insurance plan through COBRA, he may continue to do so, at his sole expense, for not more than three years.

F. Extra-curricular activities for the children

The plaintiff and the defendant shall equally share the cost of the children's extracurricular activities.

G. Post-majority support

The court finds as a matter of fact that it is more likely than not that the parents would have provided support to their children for higher education or private occupational school if the family had remained intact.   Pursuant to the provisions of General Statutes § 46b–56c, the court reserves jurisdiction to determine educational support and each party reserves their respective right to file a future motion or petition for an educational support order.

H. Alimony

Based upon the statutory factors, including the age, education, earnings, vocational skills and work experience of the defendant and of the plaintiff, the court has determined that no alimony is awarded to either party.

I. Division of assets and liabilities

1. Marital home.   The plaintiff shall retain the home at 49 Alexander Road, Bloomfield, Connecticut free of any claim by the defendant.   The plaintiff shall remain responsible for the payment of the mortgage, taxes and insurance premiums.   The plaintiff shall have exclusive possession of the property.

2. Automobiles. The plaintiff shall retain the Jeep and the Ford Expedition, free and clear of any claim by the defendant.

The court is not ordering the plaintiff to transfer the Chrysler to the defendant unless the defendant within ninety days from the date of this memorandum relieves the plaintiff of liability on the loan secured by the car.   The defendant may either (i) purchase the car from the plaintiff by payment of an amount sufficient to satisfy the loan or (ii) with the consent of the lender, and provided the plaintiff is released from liability on the loan, assume the plaintiff's liability on the loan secured by the car.   In the event there are delinquent taxes payable on the car, the defendant shall be obligated to pay the same.   In the event the defendant purchases the car or assumes the loan and in either event relieves the plaintiff of all liability with respect to the car within such ninety-day period, then the plaintiff shall promptly transfer the title to the Chrysler to the defendant.   In the event the defendant fails to do so, the plaintiff shall, from and after the ninety-first day after this memorandum, retain the Chrysler free and clear of any claim by the defendant.

3. Savings accounts and bank accounts.   The plaintiff and the defendant shall each retain as her/his sole property free and clear of any claim by the other their accounts at Dutch Point Credit Union and TD Bank, respectively.

4. Debts. The defendant shall assume sole liability for the debt due to the IRS for the 2008 taxes in the amount of $7,293.04 and shall indemnify and hold the plaintiff harmless from liability therefore.

As for the 2009 tax liability, the court orders the parties to file an amended tax return to correct the amount of W–2 income received by the parties.   The parties shall use their best efforts to cooperate with each other in an effort to minimize any tax liability that may be imposed by the IRS in connection with the 2009 taxes.   To the extent that there remains a balance due to the IRS, for taxes, interest and/or penalties, the plaintiff shall be responsible for 50% and the defendant shall be responsible for 50% thereof.   The parties shall each indemnify and hold the other harmless from liability in the event any party is required to make a payment to the IRS in excess of 50% of the assessed liability.

As for the 2010 taxes, the parties shall file a joint tax return and shall equally share in any refund or balance due and payable to the IRS. The parties shall each indemnify and hold the other harmless from liability in the event any party is required to make a payment to the IRS in excess of 50% of any balance due for the 2010 tax year.

5. Life insurance.   The plaintiff shall retain her life insurance policy and may change the beneficiary as she shall solely determine.

6. Personal property.   Each party shall be entitled to her/his personal property free and clear of any claim by the other party.

J. Tax Exemptions

To the extent there is an even number of children eligible to be claimed as a dependent on the parties' tax returns, the plaintiff and defendant shall equally share the same.   To the extent there is an odd number of children so eligible, the plaintiff shall in odd number years and the defendant shall in even number years claim on their respective tax returns the additional dependent, e.g. if in 2012 only three children are eligible to be claimed as dependants, the defendant shall claim two and the plaintiff shall claim one.   When there is only one child eligible to be claimed as a dependent, the plaintiff shall take the exemption in odd numbered years and the defendant shall do so in even numbered years.

K. Tax Indemnification

Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that parties' income or deductions.

L. Tax Information

For so long as the defendant has an obligation to pay child support to the plaintiff, the parties will annually exchange their W–2s, 1099s, K–1 and similar forms by February 15 each year and will provide each other with a copy of their federal tax returns within five days of filing.

M. Costs

Each party shall be responsible for their costs incurred in connection with this action.

N. Effectuation of Orders.

Each party is ordered to sign whatever documents are necessary and, as presented to them by the other party, to effectuate these orders within ten days of presentment.

Unless otherwise specifically set forth herein, these orders are effective immediately.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. Subsections (a), (c) and (f) of General Statutes § 46b–40 provide, in relevant part:  “(a) A marriage is dissolved only by (1) the death of one of the parties or (2) a decree of annulment or dissolution of the marriage by a court of competent jurisdiction ․(c) A decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes had occurred:  (1) The marriage has broken down irretrievably;  ․ (3) adultery ․(f) For purposes of this section, ‘adultery’ means voluntary sexual intercourse between a married person and a person other than such person's spouse.”.  FN1. Subsections (a), (c) and (f) of General Statutes § 46b–40 provide, in relevant part:  “(a) A marriage is dissolved only by (1) the death of one of the parties or (2) a decree of annulment or dissolution of the marriage by a court of competent jurisdiction ․(c) A decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes had occurred:  (1) The marriage has broken down irretrievably;  ․ (3) adultery ․(f) For purposes of this section, ‘adultery’ means voluntary sexual intercourse between a married person and a person other than such person's spouse.”

Olear, Leslie I., J.